tv [untitled] March 16, 2012 9:00pm-9:30pm EDT
an interest in. as you said, what we're talking about is a copy of records released. not the record copy. it is one copy that's available, the beauty of the web, of course, is you can have those copies availables in lots of places and able to be reached in lots of different ways now. and fortunately the reading room on the foyer web page is not the only place that one could encounter the records. >> but what would you suggest that i turn to rectify the situation? >> well to drop it down to the federal records act and say, hey, i think something might be happening that you folks might disagree with. i would also consider the possible, maybe you'll tale me it's unrealistic, i'm not sure, if seeing if you can have a tech person check for the hits.
how many hits are on that document? and i would say as a mart of ordinary practicality how many sense does it make to have it up there? i would like to think they narrowly accept the judgment? >> gavin has a comment on that. >> i have three quick responses to the question. for me, i think the priority is getting more release documents posted in the first place. i can't speak to the air force in particular. but if general the practice across agencies is not whatever rerelease. so to me, that's the top priority first is to get it posted. and the second, without a definitive response on this, i would like to suggest that in general we need to rethink record schedules and record retention for websites.
including for released records, but generally for the web. and the third is to note the responsibility for outside government as well. at least there may be an important role. traditionally it's our libraries and our archives that ensure there's long-term access and permanent preservation to important government information. and i think that there are certainly some interesting things going on now in terms of libraries and archive kooifs and the way they ensure that is available over the long term. and we're in the midst of a transition as to how that role is played in the dejal age.
and i think that this particular example is one where there's probably some room for new initiatives and improvements in the way both government and the library and archives community is playing the role to ensure that there is transparency, not just in the short term, but over the long hall. >> mary ann? >> yes, just one more thing to say. recently i talked to someone at justice for one of the reports, and they started thinking we were all going to call them libraries on our thing. so if they're going to tell us in a sense to change things, this might also be a good time to let them know about this, since they seem to tell us how to change how we're keeping our libraries online. i would recommend getting in touch with department of justice as well. >> we maintain those records as reference copies so they're not
subject to the same disposition as others. the record copies are kept for a period of time, as long as they're needed. >> i'm going to give you some pushback. if you're talking something required by law to be maintained by the agency, i think they would have a hard time viewing that as merely referenced copies. i think it's a federal record and has to be subject to dispositioned schedule. simply because of the mand tear requirement of subsection a2-d. >> yes, sir. >> national security counselors. first of all, before i get into my question, when we're throwing out titles, displaying what ogis does, ogis put a blog out about a month ago that i think perfectly exhibits what they can do for requesters, and the title
of the blog was five words, how to invite a lawsuit. and this was basically their mission statement. they were telling agencies, if you want to be sued, do these things. these are the things that most annoy requesters into filing suit. now i would advise everybody to read that. that being said n a slightry related vein, in response to what you were saying about how to measure it, i have a question. how to measure your success. i would view that success is not measured by getting agencies or requesters to do something that they were already doing, but to get them to change their position. that's where the mediation would
come in. mediation doesn't accomplish anything if both parties proceed to do what they were doing anyway. so i would ask you how often do you a requester has come to you asking for hope with an agency position they've taken. or an agency has come to you asking for help getting a requester to change their position or the questioner has changed their position. >> well, i think that could be measured. we try to have a sense of that. as we assess, we can throw that in the mix. to really get some concrete and
creative. sue this morning was talking about finding creative ways to improve the process. that don't require an act of congress or going to the courts. and certainly, anything that we can do to improve the way we're working, we are looking to that every day. so we will pursue that. we will throw your idea up. >> is this the question to me. if you have a ballpark idea most of the time they do change their position, most of the time they don't change their position? >> oh, boy. it's all over the place. we certainly get requesters coming to us unhappy with the response they've gotten. it looks like the response was entirely in accord with the law. but maybe there is something more we can give the requester
in terms of why or what the underlying records look like or even if they can't get everything they want. that is providing help but not changing the position. >> be careful how you define that. you defined so loose ly loosely on this side, sir? but nevertheless, that's what the conferences are all about. yes, sir? >> steve wonders. susan long's keynote address she mentioned the problem that can be encountered where if you're searching to have a document
released that the agency averse to the idea, may just change the label on the document and say there's a search for the document. in the era of big data and the cloud, there's a lot of talk within universal identifier. you would not be able to do that. could you comment on the problem? or if you see it as a problem? hiding documents by changing the labels on them? >> don't look at me. >> i'm wondering if my fellow panelists would like to address that.
>> i'm going to speak in a general manager because it's all i can speak to. but hiding behind the label is simply not good customer service. they can make proactive disclosures. also, they know of great interest, they shouldn't be waiting until they get the request to ask for exactly the right way. but they should be trying to make pro active disclosures. that's not our interpretation of things. that's part of the government render rendered. this is a probably that will
come in. with a little more teeth to avoid this. >> i can tell you, sir, that it's a serious question. and it arose in a few instances. i don't want to overstate it, at the end of the bush '43 administration. the last year or two. i knew there was some sort of requesters recognizing this and be concerned about it. they went to extra length to broaden the phrasing of their foyer request to guard against that happening. although it's a general rule, you want to make a request as specific as possible. see if you can find the records. you sometimes have to broaden them self defensively for that reason. it's something that has to be done. this is, i think, an area that deserves more exploration out of
the agency annual reports and general in terms of the investigations. but for the most part, when people look at exemption use and withholding by agencies, they exclude this category of denials for reasons other than exemptions. and i think there's a good reason to do that. but there's also a good reason not to do that. and the reason they deserve a closer explanation is there does seem to be a significant variation in the way that agencies turn down requests like fee-related reasons. no record was located, and so on. now in general, these are sort of things that shouldn't be discretionary. but there's such a difference in the way that somesies perform
compare to others that it suggests that it is worth looking into. >> we have time for -- i want to first check with respect to the panels, will we have time for just a very quick question, and usually we have less time strain and more flexibility on the programs. we're having one of the panels at the next panel phone it in, so to speak, from california. this is a pick as close as possible. >> i do have a comment. the comment is more important than the question. >> is it possible i could persuade you to hold the comment until after the next segment? >> sure. >> with a guarantee, not just because a first amendment right but because i'll have time to cover that.
constitutional scholars and lawyers discuss current legal controversies. this is an hour and 20 minutes. thank you very much, dan. welcome to the lit gators. i'm not a lit gator. i'm part of the advocacy community working on these issues. and from our perspective, things have been looking up. we had open bipartisan support. we had a new administration come in and declare transparency one of the major goals and on the first day issue a memorandum. declared there would be a presumption of openness. so these were all positive signs for a big change. the purpose is to bring a
reality check. we have an incredible panel with really significant experience. again, some of the most significant challenges, very heavily weighted towards the intelligence community, where the challenges are very difficult because of the secrecy requirements, and also our most important. it means to enact. part is making sure the government agencies respect our rights. we're going to let him talk about one of his major cases. then we'll up it aup for q&a.
we have him going 24 hours it seems. he is a former law clerk to the honorable steven rooen heart in the united states court of appeals for the ninth circuit. a graduate of yale law school in oxford, university. in may of 2006, 11 month leaders and community groups filed a joint request to the fbi for all records in the surveillance and investigations of themselves or their group since january of 2001. none of the individuals has ever been charged or convicted of any crime. they hope to shed light on practices implemented by the federal agents to spy on mosques. they also shed likt on the other practices. so welcome to the panel. >> thank you. and thank you for allowing me to
do this by skype. can you hear me okay? >> perfect. >> great. so, thank you for the introduction. what we learned more than anybody else is the fbi was surveilling a lot of political activity of members of the muslim community in southern california. but to some extent we had already suspected that. obviously talking about section 55-c. the quote/unquote exclusion. i want to say how we learned that those were likely an issue in the case. when we filed the request, it was a first person request. we said we want any documents in
which their name appear. when we got the information back, there were large redaxs on in pages redakted on the ground that the information there was outside the scope of the request. sort of obviously in a first-person request, it doesn't make a lot of sense to have an outside the scope redaction. then it is within the scope of the request, there may be another basis for exempting it, but it wouldn't be that one. in addition i have concerns about the adequacy of the search. therefore saug more data bases. i don't want to get into details. as often happens, there were cross motions for summery motions. then they held a hearing that is obviously very common in the cases. after we had an argument to which the district court suggested he was inclined to
believe that the searches were inadequate and there were problems with that. then there's another one. we tried to get more information. basically we're told that nothing more could be told to us at this time. i would love to know what happened in those hearings. at some poin during the hearings, the judge must have come to realize that the government was invoking section 5022 drrks or otherwise making statements not truthful. and the district judge here, a good judge has a reputation for being a conservative judge. in the santa ana division of that division in california. after that, the case got really weird. the district court issued an
opinion but said it would be unsealed unless the government objected to it. the government then appealed that to the ninth circuit. they didn't disagree with the underlying decision, but disagreed with the decision to unseal the district court' order. then they found out. we didn't know how to approach that, and i'm sure as you know, it's a lit gator, a senior lit gator in national security issues in the justice department. he told me that the information they were keeping from us was nonclassified. then in response, much of our briefing focused on it. you shouldn't be withholding information under national security grounds where the information is not classified. this is when they get classified information. all this i know now is entirely
irrelevant. i argued several times that you had the bench go out. but in this case, they sort of friendly nodded to me and were very pilot, and let me babble on about things that had nothing to do with the case. because i had no idea that it was at issue. and i finished with a minute and a half. afterward the opinion came out. and as i read it we lost. because the opinion said if the district court had to rewrite the opinion and take out the information that had been in it. they do not permit the government to withhold information from the court.
then later said the court's function is compromised. and with the contacts that i had, understand why the statements were in it. the minnesota just also mentioned in the legal summery and passing section 552c. and that caught all our eye ls. i didn't know what the provision said. i had never noticed it before. when the case wept back down. the district court issued the first of two, i think extraordinary orders, and opinions. and i don't know how much was rewritten from what happened before, because, of course we hadn't seen it. maybe the first one was extraordinary. but they did tell us in the course of argument that the original opinion revealed nothing about the nature or the number of the documents that had been withheld by the government
which led me to suspect that the fact that 552c was at issue at all. it included a long discuss of section 552c. a discussion of the memo, which reports to interpret that section. although we disagree with it. and that's a memo that could arguably read to authorize the government to not be truthful in responses where the information is at issue. and then the opinions strongly criticize the government for lying to the court. at the end of it, it's still ruled we didn't get the understood lying documents and provided almost no explanation. to this day, we haven't gotten more documents from the time of the summery judgment order and our time has run and we don't plan to appeal the order as of
now. after that we decided to move to sanctions on rule 11. basically it's a rule that no officer of the court, yo u know, any attorney, government or not, cannot lie to the court with respect to facts or arguments that have no legal basis. and after hearing arguments, they ruled in our favor and sanctioned the government and ordered them to pay our fees. the government appealed that. that's where we are today. i'll close with a few takeaways that i've had from the strange ride. which is not over as of now. the first thing is we were very fortunate in this instance to have a conscious judge, and we were also very lucky you could
have easily looked and chosen not to view it all. and even if we had, i think there's a good possibility that many judges would have gone through the set and the government's declarations in support and not figured out that the court was being misled by the way the responses were written. our legal system has to work not just for judges who dig deeply. it won't always be true that you get so lucky or that the judge will have the time or inclination to do the work that really the party should be doing. and we need a system that works under those systems as well. the second issue, this case is a good for that. it started in 2006. and it's been going on
throughout the obama administration. and here there's been no change of any kind. certainly no differences in terms of the documents we have gotten. there have a variety of ways with dealing with the problems that arise. the government wants to keep secret the facts that the documents exist. one way is to issue the responses that the government neither confirms or denies the existence of documents. my personal view, just speaking for myself, having read the legislative history and certainly the language of the statute i i think that's the
best reading applied to the statute. there are other ways. you say there are no documents that must be disclosed. no documents pursuant to the different kind of language like that. and as long as it's written h in a way that the response is given when there are no documents, and other times when there are documents, then the purpose should be served. what you cannot do in our view is lie. and i think there's not further contacts or explanation given, most people will interpret that to mean there just aren't any. and that is false. and that's equally problematic, when you give it to the court or to the public. and certainly when you do so under a statute like this freedom information act. so i'll stop there. >> hold on. thank you very much. what i would like to do is open
it up for a few questions so we can let him go on his way. so if there's anything in the audience. if you would, could you just very briefly explain what 552c is and what it does. it allows them to treat three categories of information as though they are not suggest to the language in 552b, which is where the other exemptions are. the categories of information certain circumstances, law enforcement information subject to certain conditions there. and some of the conditions
incorporate information that's already exempt under subsection "b." so it it definitely does something more by giving the government the way of power of information than what's done in subsection "d." but how much more is unclear. >> anything from the panel. any question? >> hi, i'm curious, you said the government has appealed the rule for the sanctions saying they didn't do anything wrong. could you go into briefly why they're challenging this? >> in the district court, the governments that they felt strongly that they had not misled